Dynamic Duos: Part 2--Codifying Consistency
By Jonathan Seidel
This essay tackles the differences between the two modern codexes, marking a clear philosophy by both.
Contrasting Codifiers
Profs. Broyde and Pill bring four cases that distinguish the two1. The first is phylacteries during Chol Hamoed. Following the established practice by the Shulchan Aruch who prohibits and Rema who permits (SA Orach Chaim 31:2). The two rabbis take divergent approaches. R’ Kagen comprises both opinions concluding one should don phylacteries with supernal intent but without a blessing (MB 31.8). Thus satisfying both former opinions without disclosing who is indeed correct. R’ Epstein alternatively rules that the custom should remain and each to their own (AHS Orach Chaim 31:4). Claiming that Ashkenazim who do not wear technically is fine. R’ Kagen sees prior rulings as true and thus to accomplish from both sides to not sin he crafts a solution but R’ Epstein recognises plurality and allows the recent development to continue. In the words of Dr. Haym Soloveitchik, R’ Kagen has shifted from mimetic to text2. R’ Epstein remains in the mimetic tradition. R’ Epstein allows the historical facts of accepted custom to rule out any varieties among different groups. One could question if R’ Kagen as codifiers before him believes in metaphysical determinacy3. It seems though R’ Kagen believes he is unworthy or incapable of solving the ancient disputes following metaphysical indeterminacy. He synthesises the two prior opinions to create a bifurcated unity. R’ Epstein alternatively accepted epistemological indeterminacy, still permitting divergent customs to continue in plurality. Yet he was blunt about what he thought the law should be (his personal decision does not negate his acceptance of multiple truths). At times allowing variety and at others clear about his sole solution to obey.
The next case brought by Profs. Broyde and Pill, is prohibiting praying in the presence of a married woman whose hair is not covered4. The Shulchan Aruch prohibits claiming women must cover their hair (SA Orach Chaim 75:2). The Shulchan Aruch ignores social change as R’ Kagen explicitly follows in agreement (MB 75:2). R’ Epstein attuned to the social change quotes the Mordechai (Mordechai Berachot 24a) (who cites the Ra’avyah) answering women’s hair is no longer considered ervah/nakedness because it is a norm for married women to walk around with their hair uncovered (AHS Orach Chaim 65:7). Its lack of current eroticism allows prayer recitals in their presence. The contrast is clear. R’ Kagen follows the tradition sticking to a meta-historical view of ervah as a metaphysical truth5, while R’ Epstein acknowledges the novelty in social changes. He turns back to the Talmudic source. The original spark constructs a new rationale of the initial implementation.
In regards to the minimal size for tassels. Shulchan Aruch rules that the length must be able to cover the body of a child (SA Orach Chaim 16:1). R’ Kagen attempts to solve the issue by appealing to different earlier scholars (MB 16:4). Again R’ Kagen tries to satisfy all opinions from the Pre Chadash to the Peri HaAretz. R’ Epstein as well continues in his historical pursuit advocating reinterpreting the Talmudic ruling in historical terms. Claiming the discussion on size is unneeded (AHS Orach Chaim 16:5). To be clear as the authors seem to clarify6, R’ Epstein is not necessarily disagreeing with earlier approaches as incorrect but that they are talking past each other. Each focuses on a different aspect. R Epstein is talking about Tzitzit katan, not a Tallit (large Tzitzit). His understanding of the nuances enables creative interpretation. R’ Kagen continues a codified theme of progressing the answers given by former leaders. It is not as if R’ Kagen is copying and pasting old views into his own. He does make some novel conclusions but it is in light of accepting the genuineness of the former opinions and taking them into account. Organising the old into a compromised new.
The last case cited by the authors is the citywide eruv building. The Shulchan Aruch rules that an effective eruv is that which is built in an inclusive area, not regarded as private or public (SA Orach Chaim 364:2). Following Maimonides and Rif rejects the opinion of the 600k> people permission (SA Orach Chaim 345:7). As Dr. Soloveitchik had pointed out with regards to the prevalent custom of removing fish bones on Shabbos, the deviation from textualism evaporated in the twentieth century7. Yet similar to the example just brought, people did build eruvs in genuinely public areas in contrast to the Shulchan Aruch abiding by the 600k> opinion8. Becoming ever so prominent by the time these big codifiers began to write. R’ Kagen though recognises the reality is willing to discourage people from involving themselves in this practice. Historical changes are quite irrelevant. It is not the change that is concerning but the adjudicator who permitted it. He regards it as leniency we should not necessarily rely on. Ambiguity exists if one should even actualise in opposition. R’ Epstein acknowledges this change and attempts to justify it. He returns to the core of argumentation and interpretation to create flexibility that clear leniencies are viable actions. As an adjudicator and communal leader, he is clear what he thinks is permitted or prohibited. R’ Epstein’s respect for alternations is embedded into his realist historicity in contrast to R’ Karen’s traditional continuation. This is not to say R’ Kagen ignored social trends but he was more reluctant to abide by it.
Endnotes
1. Michael J. Broyde and Shlomo C. Pill, “Building the Set Table: An Introduction to the Jurisprudence of Rabbi Yeêiel Mikhel Epstein’s Arukh ha-Shulchan in Contrast to the Mishnah Berurah” Dine Israel 33 pp. 1-69. See also: Simcha Fishbane, "Structure and Form in Halakhic Literature: a Different Approach To the Study of Modern Jewish Law" Method & Theory in the Study of Religion 2.1, pp. 82-87.↩
2. Haym Soloveitchik, “Rupture and Reconstruction: The Transformation of Contemporary Orthodoxy” Tradition 28:4 pg. 66-67. Dr. Solovietchik also notes the contrast between these two giants.↩
3. See: Shlomo C. Pill, “Leveraging Legal Indeterminacy: The Rule of Law in Jewish Jurisprudence” The Journal Jurisprudence (2017) pp. pp. 285-286.↩
4. Broyde and Pill, “Building the Set Table” pg. 58.↩
5. R’ Soloveitchik follows a similar theory in regards to the Talmudic dictum a woman preferring to be married than alone (Kiddushin 7a). Joseph B. Solovetichik, “Surrendering to the Almighty,” Light, no. 116 pp. 13-14. R’ Kook makes a similar argument regarding purity barring women from public discourse. See: “The Halakhic Debate over Women in Public Life: Two Public Letters of Rav Abraham Ha-Kohen Kook & The Responsum of Rav BenZion Uziel On Women’s Suffrage and Representation” Trans. Zvi Zohar Edah 1:2.↩
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